Lee's Adm'r v. Hill

• Decision Date: 05 March 1891
• Parties: Lee's Adm'r v. Hill.
• Court: Virginia Supreme Court

12 S.E. 1052

87 Va. 497

Lee's Adm'r

v.Hill.

Supreme Court of Appeals of Virginia.

March 5, 1891.

Contracts—Statute op Frauds—Survival of Actions—Evidence.

1. Under Code Va. § 2655, providing that an action of trespass on the case may be maintained against a personal representative for "damage to any estate" by his decedent, an action of trespass on the case for the wrongful dismissal of plaintiff by decedent from his service will survive against his personal representative.

2. Such action would survive even at common law, since, though in form an action ex delicto, the cause of action in reality arises ex contractu. Disapproving Boyle's Adm'r v. Overby, 11 Grat. 202.

3. A verbal contract, made in August, for one year's service, to commence in the following October, is not to be performed within a year within the meaning of the statute of frauds, requiring all contracts not to be performed within a year to be in writing.

4. Plaintiff's testimony on a former trial may be proved on behalf of an administrator against whom the cause has been revived, though by the death of his decedent since the former trial plaintiff has become incompetent as a witness.

Error to circuit court of city of Danville.

H. E. Barksdale, for plaintiff in error.

Peatross & Harris, for defendant in error.

Lewis, P. This case is the sequel to Lee v. Hill, 84 Va. 919, 6 S. E. Rep. 473. The action was trespass on the case for the alleged wrongful discharge of the plaintiff from the defendant's service, in violation of an express contract between the parties, whereby the plaintiff was employed to serve for one year in the capacity of solicitor for the defendant's business as a tobacco warehouse man, at a monthly salary of $100. At the first trial there was a judgment for the plaintiff for $800, which was reversed by this court, and the case remanded for a new trial. After the case went back to the circuit court, the defendant having in the mean time died, an order was entered reviving the action against his administrator. To this action of the court the administrator, who is the appellant here, excepted. He then pleaded that the deceased was not guilty, and also filed a second plea, relying on the statute of frauds, —that is to say, averring that the contract mentioned in the declaration was not in writing, and was not to be performed within a year. To these pleas the plaintiff replied generally. After the evidence had been closed, the defendant demurred to the evidence, and the jury as sessed the damages at $575, subject to the decision of the court upon the demurrer. The court gave judgment for the plaintiff, whereupon the defendant obtained a writ of error.

1. The Brst question to be determined is, did the circuit court err in reviving the action against the administrator? At common law an action was abated by the death of either party, and could not be revived for or against the personal representative. If the cause of action survived, it was necessary to bring a new suit. This, however, has long since been altered by statute; and now, if the cause of action survives, the action may be revived. Whether, therefore, the present action was rightly revived depends upon whether or not the cause of action survives; and we are of opinion that it does. The declaration, it is true, is in form ex delicto, but that assumpsit would lie for the injury complained of is undeniable. In such a case assumpsit and case are concurrent remedies; that is to say, an action ex contractu for the breach of the contract, or an action ex delicto for the breach of the duty, may be brought at the option of the plaintiff. Nor is it disputed that, if the plaintiff in the present case had declared in assumpsit, the action would survive. The appellant, however, contends that the action died with his decedent, because, he says, in an action of tort the rule actio personalis moritur cum persona applies. He contends that this is so at common law, and that the case is not within the statute, now carried into section 2655 of the Code, which provides that "an action of trespass or trespass on the case may be maintained by or against a personal representative for the taking or carrying away any goods, or for the waste or destruction of or damage to any estate of or by his decedent." But this position, we think, is untenable. It has sometimes been said that at common law all causes of action ex contractu survive, whereas all torts die with the person; but neither of these propositions is strictly accurate. The general rule is that rights of the former class do survive, but the rule is not universal. Thus, for instance, a breach of promise to marry, or a breach of the implied contract of a medical practitioner, or of an attorney, to exercise skill in his profession, and other injuries of a personal nature, although arising ex contractu, that might be mentioned, constitute exceptions to the rule, unless, indeed, some special damage to the personal estate can be stated on the record. 1 Lomax, Ex'rs, marg. p. 286; 1 Chit. Pi.68; Chamberlain v. Williamson, 2 Maule & S. 408; Grubb's Adm'r v. Suit, 32 Grat. 203. Nor do all actions in tort, at common law, die with the person. The true test is not so much the form of the action as the nature of the cause of action. Where the latter is a tort, unconnected with contract, and which affects the person only, and not the estate, such as assault, libel, slander, and the like, there the rule actio personalis, etc., applies; but where, as in the present case, the action is founded on a contract, it is virtually ex contractu, although nominally In tort, and there it sur-vives. This principle 1s illustrated by the case of Powell v. Luyton, 2Bos.&P. (N.R.) 305. That was an action of tort against one of several joint owners of a ship for not safely conveying goods which had been delivered to him by the plaintiff for that purpose. The defendant pleaded, in abatement, that his partners ought to have been joined. To this plea the plaintiff demurred, and, in support of the demurrer, insisted that the action was on the tort, — i. e., the negligence of the defendant, —and not on the contract, and, therefore, that it was necessary to declare jointly against all the partners; but the court overruled the demurrer, holding that the form of the action could not alter the nature of the transaction, winch had its origin in contract. And Mansfield, C. J., seemed to be of opinion that an action in that form—its foundation being essentially contract—would lie against the executor. This subject was discussed in Booth v. Northrop, 27 Conn. 325, which was an action on the case for a false warranty in the exchange of cattle. Pending the action the plaintiff died, and the question was whether the action survived to the administrator. The court unanimously held that it did, and, In the course of its opinion, used this language: "On the question of survivorship we consider it immaterial whether the form or the remedy adopted is in tort or in contract, provided the cause of action is founded on a contract. The form of action brought to redress a wrong, sometimes, and, indeed, usually, indicates its nature, whether as arising independently of contract or not; but this is far from being invariably so, there being many cases where the action, the cause of which grows out of a breach of contract, may be in form ex delicto, as in case, or ex contractu, as in assumpsit. In determining whether a cause of action survives to the personal representative, the real nature of the injury or claim ought to be regarded, and not the form of the remedy by which it is sought to be redressed or enforced." It is true this court, in the earlier case of Boyles' Adm'r v. Overby, 11 Grat. 202, decided differently; but the case was not. argued on the losing...